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  • Criminal Essay - 2005 1

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    Tekani Trim
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    A person may be criminally liable for failure to act under certain circumstances: 1) When there is a statutory duty to act established by acts of Parliament, such as duties to care for children or provide a breath sample. 2) When there is a common law duty owed, such as duties owed by public officials, contractual duties, or duties arising from special relationships like family members or those who have voluntarily taken responsibility for another's care. 3) When a person's own conduct has created a dangerous situation and they fail to take reasonable steps to prevent potential harm despite being aware of the danger.

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    Omissions Essay...Good Luck

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    A person may be criminally liable for failure to act under certain circumstances: 1) When there is a statutory duty to act established by acts of Parliament, such as duties to care for children or provide a breath sample. 2) When there is a common law duty owed, such as duties owed by public officials, contractual duties, or duties arising from special relationships like family members or those who have voluntarily taken responsibility for another's care. 3) When a person's own conduct has created a dangerous situation and they fail to take reasonable steps to prevent potential harm despite being aware of the danger.

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    184 views2 pages

    Criminal Essay - 2005 1

    Uploaded by

    Tekani Trim
    A person may be criminally liable for failure to act under certain circumstances: 1) When there is a statutory duty to act established by acts of Parliament, such as duties to care for children or provide a breath sample. 2) When there is a common law duty owed, such as duties owed by public officials, contractual duties, or duties arising from special relationships like family members or those who have voluntarily taken responsibility for another's care. 3) When a person's own conduct has created a dangerous situation and they fail to take reasonable steps to prevent potential harm despite being aware of the danger.

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    Criminal Essay Question #1 2009 Under what circumstances may a person be criminally liable for a failure to act?

    A crime can be described as an act or omission which is punishable by law. A crime consists of two core elements which are the Actus Reus; the physical element as well as the Mens rea, the mental element. It is well established in the legal system that a crime must consist of both of these elements as outlined in Woolington v DPP. In the aforementioned case, Lord Sankey stated that, ...For a conviction to be grounded the prosecution must prove the two basic elements of a crime, that is the Actus Reus and the Mens rea. A failure to act or an omission falls under the purview of the Actus Reus or the physical element of a crime. Usually the Actus Reus element of a crime requires positive action on the part of the accused, and as such there exists no general liability for a failure to act under the common law for the United Kingdom. This therefore means that criminal liability can only be incurred where a duty exists in law. It can safely be said that a failure to execute a moral obligation cannot impose a sanction however most legal obligations if not all arise from moral responsibilities. This correlation between moral and legal obligations was supported by Lord Caleridge CJ in the case of Instan 1833. A legal duty to act arises in the form of statutory duty; these are acts of Parliament which clearly impose a liability where there is a breach of some legal duty to act. A prominent example of such is under the Children and Young Persons Act 1933, where it is an offence to wilfully neglect a child. Another instance of statutory duty can be found under the Road Traffic Act 1988, where the failure to provide a breath specimen may impose criminal liability on the accused. These older statutes clearly show where an omission can impose liability and more recently the Dangerous Dogs Act of 1991 purports that a failure to keep a dangerous dog under control in a public place would do the same. The Common Law also provides circumstances of liability for omissions. A duty owed by a public officer; as in the case of R v Dytham, illustrates this principle. This is imposed on persons who hold offices which require a degree of care toward the general population. A breach of this duty of care could amount to misconduct in public office if the accused is convicted. Pittwood 1902 exemplifies the principle of a duty imposed under Contract. The cases of contractual obligation simply mean that the defendants failure to act would amount to a breach in the contractual duty giving rise to criminal liability. However, unlike the broader aspect of criminal liability, contract law stipulates that contractual obligation would only be owed to those party to said contract. Nevertheless, cases such as R v Benge purports that where duty which

    arises out of contract may extend to others and as such failure to execute said duty may incur criminal liability. Special Relationships impose liability for omission under the common law. A duty of care is imposed upon blood relationships. This also includes without a doubt a guardian as the courts prefer leaning toward examining reliance and conduct as in the case of R v Instan as well as Gibbins and Proctor. Familial relationships generally infer a duty of care where members share a household as in the case of Stone and Dobinson. The common law also facilitated an extension of the duty of care to unrelated persons, the courts again looking for the relationship of reliance between the defendant and the victim. This can be linked to a responsibility that has been voluntarily assumed for another individuals care that has been breached as in the case of Gibbins and Proctor. A duty also arises from conduct in the common law, which in cases such as R v Miller can be associated sometimes with the creation of a dangerous situation by the accused. In clear and obvious circumstances where the defendant has created situations or risks which he is aware of as being dangerous, he is under a duty to take appropriate and reasonable steps to prevent or reduce the potential harm or danger. Where the defendant fails to do so he may be found criminally liable, this instance demonstrates the importance of the Mens rea element of a crime as a degree of awareness must be present for criminal liability to be inferred. It can be deduced overall that despite the general requirement of a positive action on the part of the accused, there are statutory and common law instances where this is not necessary. There are instances where liability can be imposed once a duty on the part of the accused has been established by the courts.

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